As has been seen on television and in movies, one’s ability to “plead the fifth” is a well-known right stemming from the United States Constitution. The Fifth Amendment of the Constitution, in relevant part states that “No person shall… shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law….” In essence, the Fifth Amendment protects a Defendant in a criminal matter from testifying against him/herself.

In New Jersey, in addition to the federal rule as described above, the legislature created a broader privilege from self-incrimination. Pursuant to N.J.S.A. 2A:84A-19, and the corresponding Rule of Evidence 503, subject to Rule 530:

“every natural every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate, except that under this rule: (a) no person has the privilege to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics or his physical or mental condition; (b) no person has the privilege to refuse to obey an order made by a court to produce for use as evidence or otherwise a document, chattel or other thing under his control if some other person or a corporation or other association has a superior right to the possession of the thing ordered to be produced; (c) no person has a privilege to refuse to disclose any matter which the statutes or regulations governing his office, activity, occupation, profession or calling, or governing the corporation or association of which he is an officer, agent or employee, require him to record or report or disclose except to the extent that such statutes or regulations provide that the matter to be recorded, reported or disclosed shall be privileged or confidential; (d) subject to the same limitations on evidence affecting credibility as apply to any other witness, the accused in a criminal action or a party in a civil action who voluntarily testifies in the action upon the merits does not have the privilege to refuse to disclose in that action, any matter relevant to any issue therein.”

The New Jersey version of the Fifth Amendment is much broader and allows for additional circumstances for how a person may choose to not testify in order to not incriminate oneself. This Statute, and the corresponding evidentiary rule, became the focus of a matrimonial law case wherein one party was attempting to exercise this right while on trial for an annulment. In Attor v. Attor, 384 N.J.Super. 154 (App Div. 2006), the Court was dealing with an annulment issue. The trial court was attempting to determine whether there was an issue with the Wife falsifying a death certificate of her former spouse in order to get married to the Husband in this case. Wife attempted to exercise her right against self-incrimination. The Appellate Court did not permit the Wife to exercise same because she was, in a civil action, voluntarily testifying in the action upon the merits. She was seeking a divorce upon her own cause of action and was seeking further relief pursuant to the divorce. Because she sought this relief, she was therefore barred from utilizing her rights against self-incrimination.


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